Jessica A. Koper

This appeal concerned the interpretation of a force majeure clause in commercial leases between school boards and a multi-purpose sporting facility.

Due to province-wide COVID-19 lockdowns, the facility was unable to open, and the school boards sought rent abatement under the force majeure clause.

The application judge found the clause applied and rent was abated.

The appellant (landlord) argued that the clause required the landlord to explicitly "claim" a force majeure event for rent abatement to occur, which they had not done.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's interpretation.

The court affirmed that the landlord's objective inability to provide the leased premises due to the lockdown triggered the rent abatement, regardless of an explicit claim by the landlord.

Two school boards applied for a declaration that the force majeure clauses in their commercial leases with the respondent landlord applied to abate rent during the COVID-19 pandemic lockdown from March 17, 2020, to August 11, 2020.

The landlord argued the clauses excused it from providing the premises but did not excuse the tenants from paying rent.

The court applied principles of contract interpretation and found that the pandemic-induced government lockdown was a triggering event that prevented the landlord from providing the leased space.

Under the specific wording of the leases, this excused the landlord's performance and abated the tenants' rent obligations for the lockdown period.

The application was granted.

The applicant sought to set aside an arbitration award regarding a real estate commission dispute on the basis that the arbitration committee provided no reasons for its decision.

The court found that the total absence of reasons violated section 38 of the Arbitration Act and common law requirements.

Because there was no record of the arbitration proceedings and no assurance the committee members could recall their reasoning, the court declined to remit the matter back to the committee and instead set aside the award.